As a labor employment attorney (not to mention an all-around legal nerd), one of my first thoughts on election night was “I wonder what this result will mean for employment law?” No kidding. However, to understand the answer to this question, you must first appreciate the precarious foundation on which LGBT employment law has heretofore been based.
Title VII of the Civil Rights Act of 1964 is the source of the vast majority of employment non discrimination and harassment protections, protecting employees from (among other things) discrimination on the basis of their gender. However, this law (and the Pennsylvania state law equivalent, the Pennsylvania Human Relations Act) does not include sexual orientation or gender identity in its definition of protections. Recognizing this shortcoming, a piece of legislation called the Employment Non-Discrimination Act (ENDA) was first proposed in 1994 (and has been brought before every single Congress since, with the exception of the 109th Congress). In its original form, ENDA called for employment discrimination and harassment protections for employees based on their sexual orientation. In 2007, protection against such workplace mistreatment on the basis of gender identity was added. Unfortunately, ENDA has never passed.
Having apparently grown tired of waiting for ENDA to become law, the United States Equal Employment Opportunity Commission (EEOC)—the federal administrative body responsible for administering Title VII and for adjudicating discrimination claims before they reach federal court —issued a guidance memorandum in 2012. The 2012 EEOC guidance stated, formally, that the EEOC (and by extension, the federal courts) would now consider sexual orientation and gender identity claims as being covered by Title VII. In the years after this guidance memorandum, the EEOC began accepting such claims from employee-claimants and aggressively litigating claims of sexual orientation and gender identity harassment and discrimination on behalf of aggrieved employees.
Slow progress continued in 2014, when President Obama issued a pair of companion Executive Orders, which definitively outlawed employment discrimination on the basis of sexual orientation and gender identity within the civilian federal workforce. It required private companies doing business with the federal government to affirm their commitment not to discriminate on the basis of sexual orientation and gender identity (i.e., to abide by the same antidiscrimination and harassment laws that would otherwise apply to the federal government).
Workplace rules (like whether a gender non-conforming employee can be made to use a particular bathroom at work, or whether an individual can be terminated from their employment based upon their sexual orientation) are, in large part, shaped by this EEOC framework. In other words, in the absence of the 2012 EEOC guidance, LGBT employees would have no federal protections against discrimination and harassment in the workplace because there is no federal law specifically protecting them. Importantly, without ENDA, in the event that the EEOC guidance is ever rescinded, employees would lose the ability to file federal lawsuits regarding employment discrimination and harassment on the basis of sexual orientation and/or gender identity discrimination/ harassment.
I wonder what this result will mean for employment law?
On January 30, 2017, President Trump announced that he would leave President Obama’s Executive Order in place and the LGBT community breathed a premature sigh of relief. However, on March 28, 2017, President Trump rescinded the portion of President Obama’s 2014 Executive Order which applied to federal contractors. The practical implication of these actions combined is that the only group of employees left with a specifically articulated protection from employment discrimination and harassment on the basis of sexual orientation and/or gender identity are civilians working for the federal government. Everyone else (people that work for federal contractors and people that work for private employers)—for the time being—remain able to file EEOC charges and lawsuits based on sexual orientation and gender identity discrimination/harassment, but are not specifically protected against such conduct. Only time will tell if this move marks the first step down a slippery slope of repealing already limited federal LGBT workplace protections.
Perhaps to combat this volatile federal landscape, states have begun enacting their own LGBT inclusive non-discrimination and harassment laws. As of this writing, 20 states prohibit employment discrimination in both the public and private sector on the basis of sexual orientation and gender identity; two states prohibit employment discrimination in both the public and private sector on the basis of only sexual orientation; six states prohibit employment discrimination against public employees based on sexual orientation and gender identity; and five states prohibit employment discrimination against public employees based on only sexual orientation. The Commonwealth of Pennsylvania prohibits employment discrimination against public (i.e., state) employees on the basis of sexual orientation and gender identity, but private employees do not have any such state-level protections.
Whether an individual employee is protected from employment discrimination and harassment may literally depend upon their zip code.
This patchwork of legal protections is further complicated by local laws. For instance, Section 651.04 of the City of Pittsburgh’s Municipal Code protects both public and private employees against employment discrimination and harassment on the basis of sexual orientation and gender identity. Similar city and municipal codes have been passed by Allegheny County, Erie County, the City and County of Philadelphia and 35 other cities, townships, and boroughs in Pennsylvania. As such, whether an individual employee is protected from employment discrimination and harassment may literally depend upon their zip code—the proverbial “haves” and “have nots” separated by city limits, a county line or the borders of their state.
With much of the focus in the recent LGBT movement on marriage equality, it has been easy to lose focus on the fact that, for much of America, although you can now legally marry your same sex partner, your employer can lawfully terminate you for doing so. For the foreseeable future, it appears that state and local legislatures will be at the forefront of employment protections in the LGBT community while employees and employers alike wait to see what the new administration does on the federal level. Without passage of ENDA or a comparable federal statute, what the EEOC guidance giveth, the Department of Justice can taketh away.
For employers with worksites located in states and/or municipalities with LGBT anti discrimination/harassment laws in place (such as those operating in Allegheny County and/or the City of Pittsburgh), it is more important than ever—given the confusing framework of laws described above—to ensure that your company’s employee handbook has equal employment policy and reporting provisions drafted in accordance with the law and that all employees (but particularly managers) are properly trained in harassment/ discrimination avoidance and diversity inclusion. Perhaps it is never truer than it is in the context of litigation, but, as the old saying goes: An ounce of prevention is worth a pound of cure.